Madras High Court
Mrs. Josephine Kala Rani vs The Superintending Engineer on 29 August, 2012
Author: V. Dhanapalan
Bench: V. Dhanapalan
In the High Court of Judicature at Madras
Dated :: 29..08..2012
Coram ::
The Hon'ble Mr. Justice V. Dhanapalan
Writ Petition No: 15510 of 2012
Mrs. Josephine Kala Rani
No: 9 C-2 Adwave Towers
1st floor, South Boag Road
Chennai 600 017. ... Petitioner
-vs-
1. The Superintending Engineer
Chennai Electricity Distribution Circle
Tamil Nadu Electricity Board
Central, Valluvarkottam
Chennai 600 034.
2. The Assistant Executive Engineer
OSM, Tamil Nadu Elec. Board
T. Nagar
Chennai 600 017.
3. The Assistant Engineer
OSM, Tamil Nadu Elec. Board
T. Nagar
Chennai 600 017.
4. Mr. Swaminathan Eisenhower **
No: A 102, Prince Villa
No: 15 Rajamannar Street
T. Nagar
Chennai 600 017. ... Respondents
[ ** R.4 impleaded as per order dt.
26.6.2012 passed by R.S.J. in M.P.
No: 2 of 2012 in W.P. No: 15510/2012]
.. .. ..
Writ petition under Article 226 of the Constitution of India praying for issuance of a writ of mandamus for a direction to the respondents to restore the electricity service connection bearing No: 333-012-1055 at No: 9, C-2 Adwave Towers, 1st floor, South Boag Road, Chennai 600 017, which was disconnected by them on 13.06.2012.
For petitioner :: Mr. Sirajuddin
For resps. 1 to 3 :: Mr. G. Vasudevan
For 4th respondent :: M/s. C. Prasanna Venkatesh
.. .. ..
O R D E R
Writ petitioner, who is a tenant under the 4th respondent, has come before this Court with a prayer to direct the respondents to restore the electricity service connection bearing No: 333-012-1055 at No: 9, C-2 Adwave Towers, 1st floor, South Boag Road, Chennai 600 017, which was disconnected by them on 13.06.2012.
2. According to the petitioner, she is a tenant in the above said premises. The landlord of the property is causing nuisance to her without assigning any reason, with an intention of evicting her by his henchmen. He has disconnected the water connection. Therefore, she has filed a suit for an injunction restraining the landlord and his henchmen claiming through him from evicting her without due process of law. She has further stated that few months back, she had accommodated about 10 working girls in her residence and she has also applied and got registered vide Registration No: 592/2012 dated 04.04.2012. After the registraiton is over, all of a sudden, the respondents with his workmen entered into the premises and without any notice, disconnected the electricity service connection. The respondents also demanded the petitioner to pay a sum of Rs. 12,000/- as compounding charges and a sum of Rs. 76,000/- as fine. Petitioner claims that she has paid the sum of Rs. 12,000/- vide Receipt No: 2114655 and Rs. 76,000/- vide Receipt No: 21144776. It is also stated that a suit is also pending against the landlord in O.S. No: 1926 of 2012 and I.A. No: 5165 of 2012 before the III Assistant City Civil Court. With the landlord's permission, the petitioner is running the women's hostel. The landlord ought to have given instruction that the tariff for residential purpose is not converted into commercial purpose. The landlord did not bring anything to the tenant's notice and she is not aware of the same. While so, the petitioner explained the above said reasons, the respondents, without prior information, have disconnected the electricity service connection and demanded a huge sum from the petitioner. They have also not taken any steps to consider her request. The action of the respondent in cutting the electricity without any prior information leads to miscarriage of justice. Finding no other effective remedy, petitioner is before this Court in this writ petition.
3. The 3rd respondent had filed their counter and stated that at the outset the writ petition is not maintainable. The petitioner being a consumer is bound by the provisions of the Tamil Nadu Electricity Distribution Code 2004 and Tamil Nadu Electricity Supply Code 2004 and as such estopped from disputing the demand. The electricity service connection bearing No: 222-012-1055 was effected under TF-1A (Domestic Tariff) to Door No: 9, South Boag Road, Chennai 17, in the name of Thiru.S.N.Eisenhower for domestic purpose. That on 13.06.2012, the service connection was inspeced by Enforcement Wing of Electricity Board and found that the energy from the S.C. No: 222-012-1055 is used for ladies hostel run by the writ petitioner in the said premises. The petitioner utilised the energy from the above service connection for commercial purposes i.e. the petitioner used the electricity for the purpose other than for which the usage of electricity was authorised and immediately, the service connection was disconnected. The petitioner paid a sum of Rs. 12,000/- vide Receipt No: CHC 222IA IS 925 dated 13.06.2012 towards compounding charges and she has also paid a sum of Rs . 76,131/- vide Receipt No: CHC 222 IA IS 1046 dated 15.06.2012 towards extra levy for unauthorised usage of electricity. As per the Electricity Act, 2003 Section 135 Sub Section 23 AA (4), the service connection shall be reconnected only after the cause of theft is removed. But the petitioner has not removed the cause of theft. The owner of the service connection has not submitted his application for change of tariff and hence the service connection is not yet reconnected. Therefore, they prayed for dismissal of the writ petition.
4. The 4th respondent Landlord has filed a counter stating that he has let out the premises to the writ petitioner for her residential use only with the specific condition that the premises shall not be used for any commercial activity. The petitioner has suppressed material facts before this Court. He was given to understand that on the said date, there was a raid in the premises by the flying squad of the electricity department and the officers, having found that there was theft of electricity by the writ petitioner/ tenant, had thereafter caused the disconnection as per the procedure. He was contacted by the writ petitioner stating that she was caught on using the electricity illegally and she wanted his letter of consent to convert the electricity to commercial to suit her unauthorized act. He refused her request stating that he had leased out the premises only for residential use and therefore, he is not willing to issue any letter. He also moved the Rent Control Court for eviction against the tenant in R.C.O.P. No: 964 of 2012 on the file of the IX Small Causes Judge, Chennai. He is also defending the suit filed by the petitioner in O.S. No: 1926 of 2012 on the file of the III Assistant City Civil Judge, Chennai, seeking injunction against unlawful eviction. Without impleading him, the petitioner has moved this Court. However, the 4th respondent got himself impleaded thereafter. A plain reading of the affidavit and the plaint filed by her before the III Assistant City Civil Judge, Chennai, in O.S. No: 1926 of 2012 would show that she is running a Women's hostel in the name of Blue Diamond, which act is unauthorised and hence, there is also a reason in the 4th respondent's petition seeking eviction. Petitioner having committed theft of electricity, has no locus standi to approach this Court for any relief. He also prayed for dismissal of this writ petition.
5. Mr. A. Sirajuddin learned counsel appearing for the writ petitioner in his submission, has consistently pleaded that there was no notice of disconnection and no intimation has been given to the petitioner. Assuming that the squad found certain irregularities in the use of energy on the date of inspection, it should be dealt with in accordance with the provisions of the Act and Code. He would further contend that the dispute is between the petitioner and the 4th respondent and the cases are pending before the competent Court of Jurisdiction dealing with rent control proceedings as well as eviction. The respondents have no legal right to question such things.
6. Per contra, Mr. G. Vasudevan learned counsel appearing for the Tamil Nadu Electricity Board would contend that it is the duty of the flying squad under the regulations of the Electricity Board to visit and find out if there is theft of energy and if they come across any such theft, they have a right to disconnect the service connection.
7. Mr. Prasanna Venkatesh, learned counsel appearing for the 4th respondent submits that the petitioner, who is a tenant, was caught for theft of energy and thus, the department has disconnected the service connection. The landlord had leased out the premises only for residential use and the tenant had converted it into a commercial use. He would also submit that rent control proceedings as well as a suit are pending before the Court of competent jurisdiction. It is also his categoric submission that the 4th respondent / landlord has objections to convert the electricity service connection from domestic tariff to commercial tariff and therefore, the change in tariff cannot be effected without notice and without hearing the 4th respondent / landlord.
8. I have heard the learned counsel appearing on either side and perused the materials made available on record. The petitioner is a tenant under the 4th respondent on lease. The service connection No: 333-012-1055 is provided by the electricity department at No: 9, C-2 Adwave Towers, 1st floor, South Boag Road, Chennai - 600 017, under domestic tariff and the same was in use until it was disconnected by the Board. On 13.06.2012, there was a inspection by the flying squad who found that the writ petitioner was running a ladies hostel at the above said premises and that the electricity energy is being used for a purpose (namely commercial purpose) other than the one for which it was authorised to use (namely domestic purpose). Therefore, the flying squad disconnected the service connection immediately. The petitioner was charged with a fine of Rs.12,000/- towards compounding charges for compounding the offence and a sum of Rs. 76,131/- towards extra levy for unauthorised usage of electricity. As the electricity service connection was not restored even after payment of the aforesaid amounts by the petitioner, she is before this Court seeking restoration of electricity service connection.
9. Section 135 of the The Electricity Act 2003, hereinafter referred to as the Act, which deals with Offences and Penalties, reads as follows :
" 135. Theft of electricity:- [(1) Whoever, dishonestly ;
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be ; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted ; or
(c) damages or destroys an electric meter, apparatus, equipment or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity; or
(d) uses electricity through a tampered meter ; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorised.
so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to thtree years or with fine or with both ; "
10. Chapter 4 of the Tamil Nadu Electricity Supply Code, 2004 deals with tampering, distress or damage to electrical plant, meters, etc.. Clause 23 AA contemplates the Procedure for assessment of the electricity charges, disconnection of supply of electricity and remoing the meter, electric line, electric plant and other apparatus in case of theft of electricity as detailed in Section 135 of the Act, which reads as under :
" 23 AA ... ... ...
( 1) The offier authorized under sub-section (2) of section 135 of the Act (hereinafter referred to as the authorized officer), may either suo motu or on receipt of reliable information regarding theft of electricity in any premises, conduct inspection of such place or premises (The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.).
(2) (a) The authorized officer shall prepare a report at the place or premises giving details such as connected load, condition of seals, working fo meter nad record, modus operandi adopted for theft of energy. Any damage or destruction to the electric meter, metering equipments, apparatus, line, cable or electrical plant of the Licensee or supplier concerned, caused or allowed to be caused by the accused person so as to interfere with the proper or accurate metering of electricity or for theft of electricity shall also be duly recorded in the report indicating whether conclusive videne substantiating the fact that theft of energy was found or not. The authorized officer may also take photo or prepare a disgram illustrating the arrangements found to have been made for theft of electricity; wherever feasible and such photo or diagram shall form a part of inspection report. Upon detection of such theft of electricity, the officer of the licensee or supplier, as the case may be, as authorized for the purpose by the Commission, may, immediately disconnect the supply line of electricity and a complaint shall be lodged in the police station as per the procedure stipulated in Section 135 (1A) of the Act on the basis of the materials collected by the Assessment Officer who has conducted the inspection. The supply to the premises shall be restored only after satisfying the stipulation of the third proviso of Section 135 (1A) of the Act. "
Section 135 (1-A) of the Act provides that without prejudice to the provision of the Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity.
11. From the reading of the above provisions, it is clear that the authorised officer of the Electricity department is empowered to inspect and raid the premises in the manner as provided under Section 135 of the Electricity Act and the procedure contemplated under Clause 23 AA of the Tamil Nadu Electricity Supply Code, 2004. It is also specifically provided as to who is the appropriate authority to deal with the matter and what are all the procedure to be followed by him.
12. In the instant case, the Enforcement Wing of the Electricity Board had inspected the premises in question on 13.06.2012 and found that the electricity was being used for purposes other than the one authorised to be used and, therefore, they immediately disconnected the service connection. On the spot itself, petitioner, on expectation that electricity service will be restored, came forward and paid the compounding charges as well as the fine levied for unauthorised use of electricity. Since restoration was not done, petitioner requested the 3rd respondent to restore the service connection by explaining the circumstances under which the payment was made by producing the necessary receipts. But, till date it was not restored to the premises in question.
13. It is the consistent stand of the landlord that the premises in question has been let out for using it as a residence. But, it is seen that the petitioner is using the premises by accommodating 10 girl students and running a girls' hostel. These are all the issues to be decided in the proceedings before the Rent Controller or the Civil Court where a suit is pending. If that being the position, when the petitioner would continue to be in occupation of the premises as a tenant till the R.C.O.P. No: 964 of 2012 and O.S. No: 1926 of 2012 are decided by the competent Courts of jurisdiction, the 2nd respondent is under obligation to consider the request of the petitioner in the manner as provided for under the provisions of the Electricity Act and Distribution and Supply Code Rules thereon. While doing so, the 4th respondent landlord has to be heard and whatever his objections be, that had to be considered.
14. In the light of the above stated position, considering the peculiar facts and circumstances of this case, in order to meet the ends of justice, it would be appropriate to direct the 2nd respondent to consider petitioner's request for restoration of electricity connection. Accordingly, the 2nd respondent is hereby directed to consider petitioner's claim for restoration of the electricity connection, by hearing the parties concerned and take a decision in the manner known to law, at the earliest, however, not later than two weeks from the date of receipt V. Dhanapalan, J.
of a copy of this order. It is made clear that the said consideration is subject to the result of the pending rent control proceedings and the Civil Suit. The writ petition is ordered accordingly. Connected miscellaneous petition is closed. There shall be no orders as to the costs.
gp 29..08..2012
Index :: Yes
Website :: Yes
To
1. The Superintending Engineer
Chennai Electricity Distribution Circle
Tamil Nadu Electricity Board
Central, Valluvarkottam
Chennai 600 034.
2. The Assistant Executive Engineer
OSM, Tamil Nadu Elec. Board
T. Nagar
Chennai 600 017.
3. The Assistant Engineer
OSM, Tamil Nadu Elec. Board
T. Nagar
Chennai 600 017.
W.P. No: 15510 of 2012